The Impeachable Offense and the Modern Presidency

The Trump presidency’s legal and other difficulties have brought fresh attention to the uses and limits of the impeachment process. Jane Chong and Benjamin Wittes have argued that Congress ought at least to initiate a careful examination of the case for impeachment before potentially having to cobble it together on the fly. Now books are appearing with advice on just that question. In the New York Review of Books, Noah Feldman and Jacob Weisberg review two of them—one by Allen Lichtman and the other, soon to be published by Cass Sunstein—and the reviewers supply their own observations.

The Feldman-Weisberg perspective holds special interest in part because they conclude that the commission of offenses prior to taking office are not impeachable. They argue that, if Donald Trump colluded with Russia to win the 2016 presidential election, then he could be removed from office for that reason only if he committed “any official acts…resulting from the distortion of the electoral process.” Examples of such impeachable official conduct would be obstruction of collusion-related investigations or foreign policy concessions to the Russians as a reward for their political support. Under the Feldman-Weisberg view, a president could not be impeached for securities or tax fraud, or some other offense committed while a private citizen, without showing how the wrongdoing influenced the conduct of his office.

This “before-and-after” distinction is mistaken. It is a view without authoritative support in the constitutional text or in the precedents. It does not reflect the best and most comprehensive scholarship on the subject of impeachment. For example, it is inconsistent with the analytical scheme that Charles Black set out in his 1974 “Handbook” and with the judgments of more recent scholarship such as Michael Gerhardt’s. On close examination, tested against reasonably drawn hypotheticals, the Feldman-Weisberg claim does not capture basic intuitions and common-sense judgments about when a chief executive’s claim on his office has suffered a fatal loss of credibility.

In the background of the Feldman-Weisberg view may be a familiar anxiety about what it might mean to dislodge a sitting president. Black cast this unease as a “very strong sense of the dreadfulness of this step of removal.” This, too, must be confronted and reevaluated in light of the evolved and exceptional character of the office of the presidency and the peculiarity of the procedures for choosing its occupant. Neither the office nor the electoral procedures are what the Founders imagined they would be, and it seems odd to think about removal in 18th-century terms as applied to the office and presidential selection in their 21st-century stage of development. Impeachment is no less a serious “step,” but the discussion of when it is justified is best informed by taking fully realistic account of institutional and political realities.

The Problems With the “Before-and-After” Distinction

The Constitution leaves wide open how to construe “High Crimes and Misdemeanors.” The range of offenses is not defined by the criminal laws, and, as Feldman and Weisberg point out, the Framers had in mind what Alexander Hamilton referred to in Federalist No. 65 as “injuries” that are “political” in nature and “done immediately to the Society itself.” The question is the expansiveness of the definition given to the political “injury” that may warrant impeachment.

Feldman and Weisberg argue against removal for implementing wrong-headed or unpopular policies, and this seems unquestionably right. In rejecting “maladministration” as a ground for impeachment, the Framers sought to protect the president from ouster where the Senate merely disagrees with the way he ran the government. The constitutional text firms up this conclusion: It is impossible to square policy differences as a basis for impeachment with the Constitution’s identification of particular, if vaguely stated, categories of offense that might give rise to removal.

But Feldman and Weisberg’s concern with “the stability of a presidential system of government” apparently causes them to limit impeachable offenses to those committed while in office, or those with demonstrated effect on the discharge of official duties. They cite no authority for this proposition.

Black, for one, does not refer in his “Handbook” to any such “before-and-after” distinction. In fact, he implicitly rejects it. Using the example of a president who has committed murder, he notes that certain crimes, “though not subversive of government or political order,” would still render the president “unviable as a national leader” and therefore impeachable. The test of viability for Black is, apparently, an offense that “would so stain a president as to make his continuance in office dangerous to public order.” Black could hardly have had in mind that this “stain” attaches only to a president who kills someone after his inauguration.

Raoul Berger, while not clear on the point, also nonetheless found that the broad concern with political injury to society cited by Hamilton in Federalist 65 “precludes a wholesale bar to inclusion of nonofficial conduct in ‘high crimes and misdemeanors.’” Gerhardt has expressed, still more strongly, the view that “wrongdoing committed before a person assumes office may relate to the person’s capacity and worthiness to hold office, and to that person’s ability to protect and deserve the people’s trust.” None of these scholars was dissuaded from taking this position by a legal barrier located in text or precedent.

The “before-and-after” division has carries implications, of course, for the current government. If, under the Feldman-Weisberg view, President Trump and his campaign were shown to have sought support from the Russian government, the timing of this conduct, occurring before the election, would fall short of behavior warranting examination in an impeachment process. It would be significant only if linked to subsequent official behavior—some apparent pay-off in foreign policy, or the firing of James Comey.

This is, first of all, a too-limited view of what constitutes an official link. Those who run for office subject themselves to legal requirements on the basis that how they run their campaigns relates to the offices they propose to hold. For example, a presidential candidate must accept limits on contributions to his campaign as a protection against the effect of these payments on official conduct in the future. It is for this same reason that the candidate must file personal financial disclosure reports. The law does more than set limits now to guard against risks later. It is widely assumed that a candidate’s compliance with these requirements has a direct bearing on his or her fitness for public responsibility. We imagine that a candidate engaged in serious campaign wrongdoing—like working hand-in-glove with a foreign government—may have demonstrated a lack of such fitness. If uncovered during the campaign, the candidate risks losing; if disclosed later, the question of the implications for fitness becomes one for Congress to consider. It is a peculiar suggestion that the president who secretly colluded with a foreign power to win office could simply say “that was then, and this is now.”

A second consideration is well captured by the Black “nonviability” test. He contended that there are certain offenses that so “stain” the presidency that continuance in office is inconceivable and effective; credible governance is no longer possible. Whether they were committed weeks or months before inauguration, or even long before, is immaterial. And Black concedes that for purposes of assessing non-viability, the range of offenses may include serious ones that are not necessarily political in character, as in his example of murder.

The last of the clear problems with the Feldman-Weisberg position is that it converts a relatively straightforward issue of fitness into a murky, protracted investigative undertaking. Assume that, for example, the collusion is clear but the official link requires extensive probing over time. There will naturally develop disagreements over the quality of the evidence of, say, the payoff, and the weight to be assigned it. Perhaps the evidence is mixed: Some shows apparent payoff, and some goes the other way. The president “lawyers up” and fights it out. Congress grinds on with the inquiry. The government then is incapacitated by the legal battle while the public is left to contemplate the one fact not in dispute: that the president won his office by collaborating with a foreign power. That presidency is not any more “viable” for lack of resolution of the obstruction or payoff allegations.

Even a case with a less dramatic official link suggests the weakness of the “before-and-after” boundary that Feldman and Weisberg argue for. A president discovered to have run in his private life a Ponzi scheme, or to have routinely submitted fraudulent bank lending documents, or massively cheated on taxes, would face loss of office under Black’s “nonviabilty” test. The occupant of the Oval Office cannot function—cannot propose to lead—without a modicum of credibility. Richard Nixon’s famous declaration,“I am not a crook,” was not just an exercise in wishful self-portraiture. His more complete statement was:

I welcome this kind of examination, because people have got to know whether or not their president is a crook. Well, I am not a crook.

“People have got to know”: Nixon understood that the public had a legitimate expectation, a need for reassurance. No president can hope to answer public concerns and restore confidence in leadership by stating:

Well, some say I was a crook, but even if arguably true, it was only before I became president. I am not NOW a crook.

It remains, of course, a reasonable concern that the impeachment process not be abused, and an inadequately bounded use of this power could destabilize U.S. politics and government. Black emphasized, rightly, that offenses would have to be “extremely serious,” so much so that they would strike “a person of honor, or…a good citizen” as “plainly wrong…regardless of words on the statute books.” The examples used here—political collusion with a foreign power, or pervasive misconduct in business or personal financial affairs—would all seem to satisfy that test.

Analyzing “Dread”: Impeachment in the Context of the Modern Presidency and Presidential Selection Processes

This “before-and-after” distinction is one of a class of arguments for narrowing the grounds for impeachment to save the nation from trauma—another instance of what is often termed “constitutional crisis,” a devastating shock to the political system. Black, who referred to impeachment as an “awful step,” also declared that “[e]veryone must shrink from this most drastic of measures.” And it is without doubt a major and profoundly serious constitutional event that cannot become routine, just another avenue for contesting an election or vanquishing a political foe. But it is also important to consider as realistically as possible the function of impeachment in the context of the modern presidency and the processes by which we review and choose among the candidates who bid for the extraordinary power that comes with victory.

The presidency in its current form is, in many respects, something of a constitutional absurdity. We entrust the occupant to wisely exercise vast powers, but the barriers to entry into competition for this office have been virtually eliminated. Provided that he or she meets basic constitutional qualifications—for example, age—anyone can run. The aspirants are not required to submit to any formal screening or peer review. The political parties may have once performed a function like that, but now they do not: They host the event but have no control over the invitation list because a candidate wishing to participate can invite himself. Now it is largely up to the press and the operation of fierce political competition to ferret out disqualifying information, and to get this job done in the compressed period after a candidate becomes serious and undergoes the fullest, most sustained scrutiny. We hope for the best.

Even the availability of resources limits the field only so much. Often a little press buzz and a good showing in Iowa, in whatever order that occurs, are enough to launch a relatively low-budget and improbable candidacy well into the later stages of the primary election process—and sometimes all the way to the nomination.

So informal mechanisms for judging worthiness are all there is to go on, and these are only so reliable. It is precisely the candidate with little prior experience in public life and the scrutiny that goes with it who may stand the best chance—as an “outsider”—of advancing well into the process. A further difficulty is the absence of agreement on what passes for a disqualifying fact. In an environment dominated by social media, featuring multiple outlets for news and information, it is not a simple matter to achieve consensus or a working majority view on what is properly considered a “fact.”

The candidate does, of course, have to win elections to gain the office. With this success comes the inclination to treat victory as a triumph of majority rule and a reason to allow this judgment to stand except in the most extraordinary circumstances and under the most exacting test. “The people…have spoken,” as Ted Cruz memorably declared when he won 28 percent of the vote in the Iowa caucuses. That state, he proclaimed, “has sent notice that the Republican nominee and the next president of the United States...will be chosen by the most incredible powerful force where all sovereignty resides in our nation, by We the People.” True, this was Cruz speaking with election-night bombast, but something like that view shapes our belief that a president entering office and soon to have the nuclear codes and other tools of vast executive or military authority reflects the will of “We the People.”

And yet, as John Frederick Martin, a critic of our nominating process, noted last year, George W. Bush became the presumptive nominee of the Republican Party before 33 states had voted, John Kerry laid claim to the Democratic crown in 2004 after less than 3 percent of the electorate had cast ballots for him, and Mitt Romney became the de facto GOP nominee after winning a majority in only three states, with New York, California, Texas, New Jersey and Pennsylvania yet to vote. Moreover, plurality victories are well understood to poorly reflect actual preference. In the general election, the Electoral College, which is obsolete as a screening device, now functions to elevate to office, as it did in 2000 and 2016, the candidate who lost the national popular vote. It also focuses the candidates’ campaigns in a handful of “battleground” states. Roughly 40 percent of the electorate does not turn out to vote.

A strength of our political “system,” as it is charitably characterized, is the general public’s acceptance that whoever emerges victorious from this selection procedure is the legitimate claimant. That is, of course, far healthier than the alternative, though over the years attacks from partisan and other ideological opponents on that legitimacy have risen sharply. But a respect for the prevailing mode of selection, the only one we have and seem unwilling to change, need not become an excuse for self-delusion. Presidents may now come to an office that is massively over-empowered with little in the way of experience, no clear understanding of what they hope to accomplish—and worse. Many hope for “growth” in office and for other branches to perform their checking function. Some put their faith in the operation of “norms.” In the current administration, there has emerged what Jack Goldsmith calls the “non-unitary Executive” in which members of the Cabinet and other senior officials publicly contradict or deflect the expressed preferences of an inexperienced, impulsive and erratic president.

This is the context in which to evaluate, realistically, the role of the impeachment process. While not a step to be taken lightly, or routinely, the “dreadfulness” of removal can be gauged only with reference to the office as it stands, in relation to the processes by which candidates compete for it. If someone not “viable” does slip through the crazy-quilt process, then the impeachment process is a safeguard, the use of which should not stand or fall on whether the new president committed his crimes and misdemeanors before taking the oath of office.

Of course, not all 18th-century assumptions and precedents built on them need be discarded, but there is also no virtue in disregarding the 21st-century realities of institutional and political change. And while impeachment might well remain an extraordinary remedy, it does not follow that it must be viewed as inevitably a constitutionally catastrophic outcome to be avoided if at all possible. In fact, the constitutional catastrophe could well be an entirely outdated understanding of impeachment. This is a useful question to be debated now, and it is an important one without regard to the specific case of Donald Trump.

Bob Bauer served as White House Counsel to President Obama, and returned to private practice as a partner at Perkins Coie in June 2011. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the Co-Director of the university's Legislative and Regulatory Process Clinic.